Notes from a Foreign Field: The Kenyan Supreme Court on Housing, Evictions, and the Right to Land

In Mitu-Bell Welfare Society v The Kenya Airports Authority, the Kenyan Supreme Court set out some important propositions with respect to the right to housing, evictions, and structural interdicts. The case involved a set of residents of the Mitumba Village, which was located near the Wilson Airport. On 15th September 2011, a Notice was published in the newspapers by the Attorney-General, giving the residents one week to vacate the land. The residents obtained a stay from the High Court, but the State authorities went ahead and demolished their houses anyway. The residents then asked the High Court to issue a finding that the demolition was illegal, that they were entitled to the land, or – in the alternative – to reasonable alternative accommodation, and to compensation.

The High Court agreed. Mumbi Ngugi J. found that the residents did not have a legal right over the land (it was public land). Despite that, however, the Notice of Eviction was unreasonable; first, because of the short seven-day period; secondly, in the absence of domestic legislation on the subject, international human rights law would apply, and the Eviction Notice fell short of those standards; thirdly, the destruction of the residents’ houses and personal effects violated their right to property under the Kenyan Constitution; fourthly, the refusal to provide reasonable alternative accommodation violated the residents’ right to housing under the Kenyan Constitution; fifthly, the residents’ had a constitutional right to public participation and consultation before eviction, which had not been done; sixthly, that the demolitions had been discriminatory, as multi-story buildings, also in the vicinity of the airport, had not been touched; and finally, the rights of children had been violated (as their school had been demolished). Coming to relief, the High Court crafted a “structural interdict” (what we understand as a continuing mandamus), requiring the State to submit a plan for what it intended to do with respect to shelter and access to housing for marginalised groups, and – for this specific case – to meaningfully engage with the residents and find an appropriate resolution.

The Kenyan Court of Appeal reversed the High Court’s judgment. It held, first, that the State was under no obligation to reallocate land, given that the residents had no legal right to it; secondly, that considerations of “national security” justified the eviction (tragically, the Court of Appeal cited Indian judgments for this purpose); thirdly, that the High Court was not entitled to grant a structural interdict/continuing mandamus, and the format of the structural interdict in the present case involved overstepping judicial boundaries; fourthly, that international human rights law was inapplicable to the present case, as the Kenyan Constitution and legislation covered the issue; fifthly, that socio-economic rights – such as the right to housing – were only progressively realisable, and therefore unenforceable; and finally, that “it is not the role or function of the Courts to re-engineer and redistribute private property rights.”

The case therefore came up to the Kenyan Supreme Court. In a (relatively) narrowly-reasoned opinion, the Supreme Court partially allowed the residents’ appeal, and reversed the judgment of the Court of Appeal (although the judgment of the High Court was not entirely restored). Because of jurisdictional constraints under the Kenyan Constitution, the Supreme Court essentially limited itself to addressing four issues: (a) the role of structural interdicts as a form of judicial remedy; (b) the application of international human rights law in domestic adjudication; (c) the relevance of UN Guidelines in the interpretation of socio-economic rights; (d) the scope of the right to housing under Article 43 of the Kenyan Constitution.

On the first issue, the Supreme Court noted that the scope of remedies was governed by Article 23 of the Kenyan Constitution. Article 23 used the word “may” when setting out forms of judicial relief (declaration, injunction etc.). Article 23, therefore, was an illustrative list, as had been affirmed by precedent. Structural interdicts, thus, were not ruled out by the Constitution. At the same time, the Supreme Court clarified that:

… interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a Constitutional or statutory mandate to enforce the order. Most importantly, the Court in issuing such orders, must be realistic, and avoid the temptation of judicial overreach, especially in matters (sic) policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions. (para 122)

The Supreme Court, therefore, endorsed a form of bounded structural interdict, that would bring it in line with separation of powers. It found that at least a part of the High Court’s order failed to comply with this threshold.

On the second and third issues, the Court found – unsurprisingly – that international law principles were applicable in informing the interpretation of Constitutional articles. Consequently, it was permissible for the judge to “refer to the Guidelines as an aid in fashioning appropriate reliefs during the eviction of the appellants. Rather than offending the Constitution, the Guidelines actually do fill the existing lacuna as to how the Government ought to carry out evictions.” (para 142)

It is on the question of the right to housing that the Supreme Court returned its most interesting findings. Article 43 of the Kenyan Constitution states that: “Every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.” Article 21(2) enjoins the State to take measures for the progressive realization of this right. Article 20(5) further provides that if the State claims that it is unable to fulfil an Article 43 right because of a lack of resources, it will bear the burden of showing that, and will also ensure that resources are prioritised to serve the interests of the most marginalised. The Court then noted:

… the right to housing in Kenya is predicated upon one’s ability to “own” land. In other words, unless one has “title” to land under our land laws, he/she will find it almost impossible to mount a claim of a right to housing, even when faced with the grim possibility of eviction. (paragraph 149)

The Court then came to the heart of its argument. While holding that an “illegal occupation” over “private” land could not create prescriptive rights in favour of the occupants, the case was different for public land. In short:

… we are of the considered opinion, that where the landless occupy public land and establish homes thereon, they acquire not title to the land, but a protectable right to housing over the same. Why, one may wonder, should the illegal occupation of public land give rise to the right to shelter, or to any right at all? The retired Constitution did not create a specific category of land known as “public land”. Instead, the constitution recognized what is referred to as “un-alienated government land”. The radical title to this land was vested in the president, who through the Commissioner of lands, could alienate it, almost at will. The consequences of this legal regime have been adequately recorded for posterity elsewhere. The 2010 Constitution has radically transformed land tenure in this country by declaring that all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals. It also now creates a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation has an interest, however indescribable, however unrecognizable, or however transient, in public land. (paragraph 151)

This is a fascinating – and potentially radical – argument. Effectively, the Kenyan Supreme Court held that in a democratic, constitutional polity, land belonged to the people. For this reason, even where (landless) people did not have a legal right to land, they retained an interest in it. This, then, allowed the Court to go on and hold:

The right to housing over public land crystallizes by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of the Constitution. Faced with an eviction on grounds of public interest, such potential evictees have a right to petition the Court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that, the eviction may be entirely justifiable in the public interest. But, under Article 23 (3) of the Constitution, the Court may craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement, etc. (para 152)

And:

The right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Courts are there to ensure that such protection is realized, otherwise these citizens, must forever, wander the corners of their country, in the grim reality of “the wretched of the earth.” (para 153)

In other words, therefore, the Supreme Court decoupled the legal right to land (as set out under a country’s property law regime) from a constitutional interest in land (which, in turn, informed the right to housing), which inhered in all people, by virtue of the democratic principle that all land belongs to the people (one can see similarities with the concept of the “right to the city”). The constitutional interest in land would not always translate into a property right, but it would vest in the occupant a range of enforceable legal rights (for example, against eviction/to alternate accommodation/to reasonable engagement etc.), that the Court would articulate and vindicate, on a case to case basis.

This finding does, however, lead to a certain tension within the Court’s judgment. If indeed there is a democratic principle that all land belongs to the people, then the Court’s distinction between “public land” (where these principles apply) and “private land” (where they do not) is unsustainable. There is no inherent distinction between “private” and “public land” that is external to State law – any such distinction is legally constructed (by the State’s property law regime). The distinction would also mean that every time the State sold land to a private party, the peoples’ rights would be further narrowed. For this reason, it is respectfully submitted that the Supreme Court’s finding that land belongs to the people would, indeed, have to apply to all land, and not just defined “public land” – and the range of remedies spelt out by the Court would apply to occupation on both private and public land.

The Court finished by remitting the case back to the trial Court, with an instruction that it be disposed off in line with its findings and with the original pleadings. It remains to be seen what the High Court – that delivered the most far-reaching judgment of the three Courts – will do. But for now, it is important to note that the Supreme Court’s analysis of the right to land contains the germ of a transformative jurisprudence that recognises that inequality in access to, and control over, land is at the heart of inequality in society. In this case, the Supreme Court did not develop that idea further; perhaps, in later cases, it will.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s